Schools seek COVID-19 liability protection
Alissa Widman Neese and Catherine Candisky
As local schools weigh plans to eventually reopen buildings to students this school year, there’s also concern about the threat of coronavirus-related lawsuits.
Despite health and safety precautions, school officials fear they could be liable if students, teachers or staff members contract the virus.
The answer is unclear, but as they navigate uncharted legal territory, they’re urging state and federal lawmakers to provide protection from potential litigation just in case.
In Ohio, House Bill 606 by Rep. Diane Grendell, R-chesterland, would provide civil immunity from coronavirus-related liability to businesses and schools.
“With the fall school year rapidly approaching, House Bill 606 will offer our schools much-needed legal protection. I have received hundreds of calls from across the state urging passage of this bill,” Grendell said.
The bill passed the House and Senate and is awaiting House concurrence with some changes made by the Senate.
Gov. Mike Dewine’s administration also has urged Congress to include similar protection in the next coronavirus stimulus package.
Lt. Gov. Jon Husted said fear of litigation is one reason some schools are not returning to in-class instruction. While he believes schools already have protection if they follow the rules, legislative action would address those concerns.
Kevin Miller, a former superintendent and director of governmental relations for the Buckeye Association of School Administrators, said he has been advising district leaders to proceed with caution.
As a political subdivision, schools are provided a fair amount of protection under Ohio Revised Code, but the statutory immunity doesn’t apply if they act with “malicious purpose, in bad faith, or in a wanton or reckless manner,” Miller said.
“The advice we’ve given every superintendent is make sure you’re having a discussion with your insurance provider,” he said. “We have heard that some are hearing back ‘We would not cover you in the case of a civil suit regarding contraction of the virus.’”
He used an example of a sports coach who continues practices, despite a student complaining of a runny nose and lack of taste or smell — all symptoms of a COVID-19 infection.
“If other kids on the team get the virus, the question is, ‘Was that coach reckless in his action?’” Miller said.
Recommendations from local health departments, some of which might contradict recommendations from other entities, such as the U.S. Centers for Disease Control and Prevention, have also left district leaders navigating a gray area, he said.
“The question becomes, if the district does something that isn’t being recommended, is that reckless?” Miller said.
Ralph Lusher, staff attorney for the Ohio School Boards Association, said the state’s qualified immunity law is a difficult hurdle for a potential plaintiff.
The Ohio Supreme Court, he said, has established a three-tiered analysis for determining whether a political subdivision, including a school district, is immune from liability, starting with protection if they were performing a government function when the alleged liability occurred. There are some exceptions for negligence under limited circumstances, but only if the entity acted with malicious intent, bad faith or recklessness.
Reynoldsburg schools superintendent Melvin Brown said lawsuits could cost districts a lot of money, even if they were found not liable.
Still, Brown said litigation is a small concern compared to other factors that influenced the district’s decision to start classes completely online on Monday, including the number of coronavirus infections in Franklin County, teachers with health conditions and the district’s demographics. Brown said 60% of his students are children of color, whose families are disproportionately impacted by the virus in Ohio and nationally.
Ultimately, a late-july recommendation from Franklin County Public Health to start classes online sealed the deal, he said.
Liberty Mutual, the district’s insurance provider, has indicated recommendations from local health departments could be considered a factor in determining liability, if a district drastically veers from suggestions, Brown said. He referenced a now-viral photo of a crowded hallway in a Georgia high school that recently led to that district coming under fire. Soon after, students and employees tested positive for COVID-19 and the school temporarily switched to online learning.
“I think if we go about our business in that fashion, it may cause us some jeopardy,” he said. “We’re not going to be irresponsible.”
If the district reopens buildings to students, the goal is to divide them into two groups and have them attend two full days a week, to cap buildings at 50% capacity. Safety measures will be in place, such as plexiglass shields, hand-sanitizer dispensers and distanced classrooms.
Officials with Liberty Mutual did not return an email seeking comment.
About half of Ohio’s more than 600 school districts are insured by the Ohio School Plan. Mike Ugljesa, president of Toledo-based Hylant Administrative Services, which administers the Ohio School Plan, declined comment.
Grandview Heights schools superintendent Andy Culp said the district’s insurance provider, Wright Specialty Insurance, and legal counsel recommended following guidance from Franklin County Public Health when considering its reopening plans, but ultimately, the top concerns were keeping students safe, while also balancing their academic, social and emotional needs.
Grandview Heights was the first Franklin County district to resume classes this school year, with completely online classes starting Aug. 17. If the district eventually transitions to hybrid learning, students will attend in-person class five days a week, but for a half day, divided into morning and afternoon sessions at 50% student capacity.
“Our goal is to try to get students back physically as soon as we can do so safely,” Culp said.
Any guidance provided by a local health department is just that — a recommendation, not a mandate, said Mitzi Kline, Franklin County Public Health spokeswoman. While the department has the legal authority to issue an order to protect the public’s health, it hasn’t done so, according to an Aug. 3 statement from Franklin County Health Commissioner Joe Mazzola.
The department is committed to working with all school districts, regardless of the instruction model they choose for this school year, Kline said. awidmanneese@dispatch.com Alissawidman ccandisky@dispatch.com @Ccandisky